SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

A114/07

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	MARY WHITEFORD
	Pursuer and Appellant
	against
	SP POWER SYSTEMS LIMITED
	Defenders and Respondents

Act: MacMillan, advocate, instructed by Irwin Mitchell

Alt: Hennessy, of Biggart Baillie

STRANRAER: 19 August 2008

The Sheriff Principal, having resumed consideration of the cause, of consent (1) grants motion 7/1 of process to allow the note of appeal to be received although late; (2) allows the Closed Record no 9 of process tendered on 17 July 2008 to be received although late; (3) grants the appeal and recalls the sheriff's interlocutor of 12 October 2007 complained of; (4) remits the cause to the sheriff to proceed as accords; (5) finds no expenses due to or by either party in respect of the appeal; (6) certifies the appeal as suitable for the employment of junior counsel.

NOTE:

1.            In this case I propose to deal with this appeal under (a) the merits and (b) the expenses of the appeal.

A. The merits

Background

2.            In this appeal an Options Hearing was fixed for 12 October 2007 in Stranraer Sheriff Court. The two firms of Glasgow solicitors, who represented the parties, agreed that the Options Hearing should be discharged and the case sisted for investigations on the part of the defenders and respondents. It was further agreed that the solicitors acting for the defenders and respondents would instruct local agents to make this joint motion to the court. Their letter of 11 October 2007 to their local agents, Rankin & Reed, stated inter alia:

"We would be grateful if you would arrange appearance for both parties at the above Options Hearing on 12 October 2007 and move the court to sist the cause for investigation."

3.            Notwithstanding the terms of that letter, the interlocutor and the sheriff's note both indicate that no appearance was made by or on behalf of the pursuer and appellant.

4.            Messrs A & F Smith, solicitors, Stranraer wrote to the defenders and respondents' solicitors on 15 October 2007 in the following terms:

"Your letter of instruction of 11 October 2007 to Messrs Rankin & Aitken was forwarded to us to deal with as Mr Laburn of Rankin & Reid was unavailable for court on 12 October 2007.

We attended at court but no Record had been lodged by the pursuer's agents and Honorary Sheriff Alan Smith dismissed the action for want of a Record. This is certainly what the resident Sheriff James R Smith would have done in the circumstances. We enclose a note of fee for your attention."

5.            The sheriff in his note records:

"This case called before me as Honorary Sheriff at an Options Hearing on 12 October 2007. No Record had been lodged in process prior to the Options Hearing as required by the Sheriff Court Rules. ... I informed Mr Kilkerr that no such Record had been lodged in process by the pursuer. At that stage he made no indication to the court that he was appearing for both parties nor did he ask for the case to be recalled at the end of the court in order that further investigations be made by way of a telephone call to the pursuer's agent. I was aware of Sheriff Smith's practice in Stranraer that he dismissed the cause when a Record was not lodged at an Options Hearing, as indeed were all the solicitors who attend the civil court. It is impossible to conduct an Options Hearing without a Record and I thus dismissed the action."

6.            Against that interlocutor the pursuer and appellant now appeals.

Decision

7.            Parties jointly moved me to grant the appeal and to remit the cause to the Sheriff to proceed as accords.

8.            The Ordinary Court Rules 1993 Rule 9.11 provides:

"(1) the pursuer shall, at the end of the period for adjustment referred to in Rule 9.8(1), and before the options hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record;

(2) not later than 2 days before the options hearing, the pursuer shall lodge a certified copy of the record in process."

The pursuer in an action is accordingly obliged to comply with these Rules. If the pursuer fails to obtemper the terms of that Rule the pursuer in an action can seek relief from that failure by asking the sheriff to grant relief in terms of Rule 2.1(1) which provides:

"The sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit."

9.            In this case the sheriff records that the solicitor appearing before him indicated he was only acting for the defenders. I observe that this appears odd when that solicitor's report to the defenders and respondents instructing solicitors in Glasgow of 15 October 2007 records that their letter of instruction of 11 October 2007 to Messrs Rankin & Aitken had been forwarded to him. That letter requested appearance on behalf of both parties at the Options Hearing.

10.        The sheriff accordingly was faced with no Record and no appearance by or on behalf of the pursuer and appellant. In these circumstances, on the information available to him, the sheriff was entitled, in the exercise of his discretion, to dismiss the cause. I comment that it would have been open to him to have caused the Sheriff Clerk's department to make a phone call to the pursuer's solicitors to ascertain why they were not represented at the Options Hearing.

11.        The fact of the matter, however, was that the pursuer and appellant's solicitor has been assured by the solicitors acting for the defenders and respondents that they would arrange appearance on behalf of both parties to have the case sisted. If the solicitor holding the letter from the solicitors acting for the defenders and respondents had realised that he was instructed to appear for both parties, the sheriff would properly have drawn to his attention the absence of a certified Record and he could have taken steps to have the case recalled in order that he could ascertain the reason for the failure to lodge the Record. From the information available to me at the appeal hearing, there appeared to me that there were grounds for holding that the failure to lodge the certified Record was indeed due to oversight. In my opinion a sheriff acting reasonably would have granted relief if that information had been tendered at the bar. The joint motion was to have the cause sisted. This was not a contested Options Hearing which required a certified Record. An order could have been made to lodge the Record within 24 hours.

12.        The parties jointly moved me to allow the appeal to be heard although late. They further jointly moved me to allow the Record to be received although late, and thereafter to allow the appeal and remit the cause to the sheriff to proceed as accords. I am prepared to give effect to these motions. My interlocutor reflects that position.

13.        The impression I am given from reading the Honorary Sheriff's note is that it was the custom of the resident sheriff at that time to dismiss an action without further ado if a certified Record was not lodged prior to the Options Hearing in terms of Rule 9.11. There were no exceptions. If that was the case, I expressly disapprove of that practice. The sheriff in my view, in the absence of a certified Record, should draw that breach of the Rules to the attention of the solicitor for the pursuer and ascertain, in terms of Rule 2.1(1), whether the failure to lodge the Record was due to mistake, oversight or other excusable cause. If the sheriff is not satisfied with any explanation offered, the sheriff may then, in the exercise of his discretion, dismiss the cause in respect of breach of Rule 9.11. That decision would be subject to appeal in the normal way.

B. The expenses of the appeal

14.        Although parties were able to agree on the disposal of the substance of the appeal, they were not able to agree the question of expenses in connection with the appeal procedure and I was addressed by parties thereon.

Background

15.        After the sheriff had dismissed this action, initially the solicitors acting for the pursuer and appellant had not appreciated that it was open to them to appeal the sheriff's interlocutor. In these circumstances they raised a second action and were met with a plea of time bar in respect thereof. Having instructed counsel, they then decided to intimate an appeal against the sheriff's interlocutor dismissing this action.

16.        In dealing with the expenses I require to record exchange of e-mails which are relevant to the issue of expenses.

i. 11 August 2008 pursuer and appellant to defenders and respondents

"Having spoken to counsel, what I am thinking of is this: (1) you withdraw opposition to the motion and to the appeal itself, in relation to the first action (2) no order is sought by either party in relation to the expenses of the first action, including expenses of the appeal (3) provided the Sheriff Principal allows the first action back on track, then (4) the pursuer abandons the second action with expenses as agreed or taxed in the defender's favour.

Please advise if you think we can get agreement on these lines."

ii. 12 August 2008 defenders and respondents to pursuer and appellant

"Thank you for your e-mail of 11 August 2008.

For the avoidance of doubt, my clients will agree to your proposal on the basis that when your counsel appears at the motion/appeal he will move the Sheriff Principal to find no expenses to be awarded due to or either party in the first action to date, and for the appeal itself.

On the basis that this is agreed, I will write to the Sheriff Principal's clerk advising that there is no opposition to your motion for allowing the appeal late, and no opposition to the appeal itself. I will also write to the Sheriff Principal's clerk to advise that your counsel will appear on Friday on the understanding that no expenses will be sought by either party. If for any reason, the Sheriff Principal wants to be addressed on the issue of expenses, your counsel will move that the matter be continued to another diet at which I shall appear.

I look forward to hearing from you as a matter of urgency."

iii. 14 August 2008 11.:31 pursuer and appellant to defenders and respondents

"I have discussed what we have been discussing with counsel and the partner here. I presume your point about expenses was meant to refer to the expenses of the appeal itself - I don't think the Sheriff Principal would be concerned about he expenses of that whole action, which should be reserved. Subject to that, whilst we seem otherwise agreed on what is happening in the first action, the agreement re expense in the second is causing problems.

Whilst if the first action is got back on track, we will have to dismiss/abandon the second action, and you would have a strong argument for expense, there is an argument that given the circumstances of that case as whole the Sheriff would mitigate any such award. Do you know what your level of expense might be for that action? Would you be prepared to allow that question (of expense re the first action) to be reserved at this stage, or alternatively would you accept, given everything that has happened a fixed limited amount towards such expense to allow matters to proceed smoothly tomorrow?"

iv. 14 August 2008 15:40 defenders and respondents to pursuer and appellant

"I refer to your e-mail of 14 August 2008.

The purpose of my proposal was twofold. Firstly, I anticipate that you are likely to have more success in achieving success in your late motion and the appeal, if the Sheriff Principal is aware that the defenders have been compensated for the additional procedure and delay by virtue of an agreement on expenses.

Secondly, it seems only fair that the defenders are not held liable for any of the expense occasioned by the additional procedure and delay brought on by your failure to lodge a Record (which I appreciate is not quite as clear cut as that) and your subsequent failure to appeal by virtue of ignorance of the law.

Insofar as expenses of the second action are concerned, you appear to have backtracked on your proposal contained within point 4 of your e-mail of 11 August 2008. I appreciate that it is relatively complex and I think it will be appropriate for me simply to appear tomorrow and put forward my client's position. My e-mail of 13 August 2008 accurately sets out my client's position going into tomorrow's hearing.

I have advised the Sheriff Principal that there will be no opposition to the late motion, and subsequent appeal should be allowed. I will, however, be seeking an opportunity to address the Sheriff Principal on the issue of expenses.

If you or your counsel would wish to speak to me in advance of tomorrow then please do not hesitate to contact me. Meantime I will see you tomorrow at Airdrie."

Submissions by parties

17.        I was addressed at length by counsel for the pursuer and appellant and solicitor for the defenders and respondents. I do not propose to rehearse these submissions in detail. The primary submission by counsel for the pursuer and appellant was that the expenses of the appeal should be awarded in favour of the pursuer and appellant. His secondary submission was that the expenses of the appeal should be expenses in the cause. The submission by solicitor for defenders and respondents was that there should be no expenses due to or by either party in respect of the appeal. Detailed reference was made to the history of the case and to the exchange of e-mails which I have recorded above.

Decision

18.        I regard the following facts of significance in dealing with the question of expenses.

i. The local solicitors whom the solicitors acting for the defenders and respondents requested to appear on behalf of both parties at the Options Hearing stated to the Sheriff that they were only acting on behalf of the defenders and respondents, although the letter of instruction which they claim to have in their possession clearly indicated they should appear for both parties. This was not the fault of the pursuer and appellant.

ii.             It is clear that a practice existed at that time in Stranraer Sheriff Court that actions would be dismissed if there was no certified Record available at an Options Hearing, and that whether or not the failure to lodge the Record was due to mistake, oversight or other excusable cause. Accordingly even if the solicitor had indicated he was acting on behalf of the pursuer and appellant at the Options Hearing, the probability is that the action would still have been dismissed and this appeal would have been necessary.

iii.            The exchange of e-mails between the parties during the week prior to the appeal was inconclusive. The pursuer and appellant, while appearing to set out a clear position in the e-mail of 11 August 2008, muddies the waters in the e-mail of 14 August 2008 at 11:31 by introducing the level of expenses in the second action as an issue to be determined in advance of the appeal hearing.

iv.           While solicitor for the defenders and respondents conceded that it had not been his intention to include in the agreement expenses in the first action prior to the Options Hearing, it is a matter of comment that the solicitor for the pursuer and appellant appears to have correctly interpreted that inclusion was not intended in light of what he states in the second paragraph of his e-mail of 14 August 2008 at 11:31. That was the position for solicitor for the defenders and respondents at the appeal hearing.

19.        The defenders and respondents have been put to substantial additional expense in respect of the second action which was raised because the pursuer and appellant's advisers did not appreciate that it was open to them to appeal the sheriff's interlocutor of 12 October 2007. However the question of the expenses in that action is not a matter for me. I am bound to comment that I would have thought that the pursuer and appellant would have difficulty in resisting an award of expenses against her in favour of the defenders and respondents in respect of that action.

20.        It is indeed unfortunate that parties did not come together immediately after 15 October 2007 and jointly move me to grant the appeal. In the circumstances outlined, I would have granted the appeal without the necessity of a hearing. Expenses would then have been minimal. The matter has been complicated by the solicitor for the pursuer and appellant unnecessarily raising the second action and then introducing the expenses of that action as a factor in any proposed agreement to disposal of the expenses of this appeal. Having balanced all the factors to which I have referred, I take the view that the appropriate disposal in respect of expenses is to make no order of expenses due to or by either party in respect of the appeal.

21.        Counsel for the pursuer and appellant asked me to certify the cause as suitable for the employment of counsel. Solicitor for the defenders and respondents did not object to that motion. I have accordingly certified the appeal accordingly.